Issa G. Shivji
Professor of Law
(Retired lecturer of the University of Dar es Salaam)
P. O. Box 953
Dar es Salaam
The immediate image of a legal professional, or in more popular terminology, a lawyer, is that of a black gowned advocate gesturing before a judge defending his client, or haranguing an ordinary man in the witness box, or a bespectacled judge pondering over astack of papers to determine the innocence or guilt of an accused. Social and professional images of lawyers abound and are summed up in various anecdotes and symbols.
In many an advocate’s office you may see the scales of justice held by a blindfolded woman, symbolizing that ‘justice is blind’, meaning justice is done without regard to the social or economic status of a person. I have a caricature, which I am fond of keeping in my office. The plaintiff is pulling by the horn a cow labeled ‘litigation’, while the defendant is pulling it by the tail. In the middle, you see the wigged judge and the back of alawyer with oversize buttocks milking the cow! The lawyer is depicted as a sucker, amercenary bent on fleecing his client rather than a messiah out to procure justice. Popular perceptions of a mercenary lawyer or a corrupt judge have become so pervasive that one Kenyan NGO is fond of distributing a badge that proclaims: ‘Why pay a lawyer if you can buy a judge?’
The image of a lawyer as a money-hungry vulture has its more refined professional symbolism to it. He or she has no time to listen to your woes and soothe you with wordsof solace for ‘a lawyer’s time is his capital’. ‘Emotions do not have a place in a courtroom’, the adage goes. A lawyer charges his fees by the hour and you pay him whether he delivers or not. The recent issue of Wakili Bulletin, in its jokes corner, differentiates a lawyer from a dry cleaner thus: ‘The cleaner pays if he loses your suit. A lawyer can lose your suit and still take you to the cleaners.’ Typically, the legal professional explains this with a sense of pride in the nobility of her profession. Legal language is not gender sensitive. He includes she. I’ll use the two terms alternatively so she includes he and he includes she.] A lawyer is not a gambler, fie is paid for the work he does not for winning a case. The argument is that a lawyer must do his best; that if he were paid only if he succeeded, he would be tempted to subvert the course of justice. In the British legal tradition, any agreement for payment of fees based on success or a percentage of the amount awarded was considered illegal or against public policy. It is respectively called conditional fee agreement or champerty. Conditional fee agreement became legal in Britain only in 1990 and then too it is not permitted in criminal and family cases, and cases involving children. Champerty means the fee is fixed as a portion of the amount won while conditional fee agreement means fees are payable only if the case is won. Ask our lawyers, even older ones, whether they know anything about champerty. The chances are over 90 per cent of them would not have heard of it and perhaps 98 per cent would not see anything wrong with it. A significant number of complaints listed in the report of the Ethics Committee of the Tanganyika Law Society involve deduction of large sums, like 30-40 per cent of the decretal amount, as fees. In most, if not all, of these complaints, the complainants are workers or other similar groups.
A typical situation would be something like this. A group of some 300 or 400 workers, made redundant by their new private employer would approach a lawyer to assist them. They do not have money to pay the lawyer’s fees upfront. The lawyer takes the case on the understanding that if he won he would deduct the fees from the decretal amount.Nothing is reduced to writing; there is no engagement letter. When the case is won, the decretal amount, say something like 300 million shillings is deposited in the lawyer’s account. The lawyer deducts 40 per cent, a cool 120 million shillings, an extortionate fee by any standard. Each individual claimant who was expecting on average, say a millionshillings, ends up getting six hundred thousand shillings alter some 5-7 years of countless trips to court. They complain to the Law Society; another saga of endless trips begins. At the end of it all, perhaps, the complainants are exhausted or the lawyer is let free on some technicality. Meanwhile, some of the original 300 workers are deceased, the whereabouts of others are not known, and the morale of the rest is broken, not to mention internal bickering on whatever small funds were raised to enable the leaders to pursue the case.
In law, even if there were such an understanding; even if it were in writing, it would be champerty. Such an agreement would be unenforceable. But the poor workers have no resources to engage another lawyer, to pursue another case, to recover their money from their previous lawyer. A couple of cases on champerty have reached our courts. But all of them involved rich clients.
One such case involved a well-known legal firm. An agreement for ‘contingency fee’ was ingeniously shrouded under the phrase ‘success fee’. The Court held that the doctrine of champerty was applicable in Tanzania and that such an agreement, by whatever name called, was illegal and therefore unenforceable.
The situation on the ground is in fact worse than the propriety or otherwise of champerty. These days a lawyer may well tell you that he can guarantee you success if you are prepared to outbid your opponent in greasing the judge’s palms. Moreover, for greasing the palms, he will charge his commission besides his fees. One cannot know that he in fact greased the judge’s palms, but then, if he does win you cases you may well believe that he did. Unfortunately, the popular image of the judiciary is not very flattering either. Whether we like it or not, the ethical standards of the legal profession on both sides of the bench have indeed fallen. Popular perceptions therefore may not be as off the mark as lawyers would have us believe.
I have come across stories which I used to dismiss but no longer find it easy to do so. A lawyer does not file the papers he is required to within time but manages to get a receipt of payment which bears the date of filing within time, although the filing of the paperswas done subsequently and was out of time. The practising certificate of an advocate says: ‘Advocate of the High Court and courts subordinate thereto.’ Every advocate is an officer of the court. The theory says that she is not supposed to do the bidding of her client, if she is asked to do something contrary to the ethics and propriety of her profession. An advocate is not a messenger of his client. But the popular perception is that the lawyer is not only a messenger, but a mercenary. He ‘sells’ to the highest bidder.
This reminds me of an exchange between a witness and a lawyer in the Wejja election petition4in which Mama Wejja was given legal aid counsel by the Legal Aid Committee of the University of Dar es Salaam. Mama Wejja was being cross-examined by a famous city lawyer, Mr. Lakha. In a volley of questions, Lakha burst out rhetorically:
Lakha: Una diriki kusema uongo kwa sababu umepewa wakili waburs’ [You dare to say a lie because you have been give a free lawyer!] Wejja: Na wewe unadiriki kusema uongo kwa sahahu umelipwa kufanya hivyo! [And you dare say a lie because you have been paid to do so!]
Well, who said that lawyers have a monopoly of witticism!
I have come across incidences in which lawyers would tell a blatant lie to get a case adjourned simply because his instructions are to buy time. It is worse when you find that a judge is only too ready to grant an adjournment. In one case, a lawyer managed to get a case adjourned in an appellate court on dubious grounds. When the case was next called out. The same lawyer told me that he could not proceed because his senior, who was handling the case, was not around. I told him firmly that I would oppose his application. Curiously, the case was not called out in the sequence that it was listed on the Cause List. Instead, the case listed after ours was called out, and heard. Then our case was called out. Even as my learned friend rose to his feet to apply for adjournment, the presiding judge intimated that he was adjourning the case to a date to be fixed by the Chief Justice because one of the members of the panel had an appointment with a doctor.
In another matter, I witnessed ashoddy Record of Appeal filed in an appeal from an interlocutory ruling. The record was so erroneous that it could not have been compiled by a lawyer, however incompetent. But it was certified by a senior lawyer. I was later to learn from the grapevine that the record had in fact been compiled by the client himself whose sole motive for filing the appeal was to buy time, which he successfully did.
In such situations, a lawyer turns himself into a messenger of his client for mercenary reasons. But messengers and mercenaries are not confined to private practice only. They exist among state lawyers as well. Incidences of state lawyers doing the bidding of politicians to bend the law or draft documents or contracts which are against national interest are not uncommon. During the last phase Government, I recall, the Honourable Attorney General argued in an open parliament that the parliamentarians could not see mining contracts signed by the Government because that would be in breach of commercial secrecy. This is a somewhat strange argument, to say the least. In a parliamentary democracy, the parliament is the sovereign body who on behalf of the people supervises the executive arm of the government. Mining resources belong to the people; they are public property; so says the Mining Act, 1997 (section 5). The elected representatives of the owners of the property wanted to know from their agent, the government, the way he had dealt with their property and they were told by the state’s chief legal adviser that they could not do so because it involved commercial secrecy!
But, then, many of the ‘noble’ principles of the enlightenment period on which constitutional lawyers were brought up have become a thin veneer for an utterly undemocratic globalization-cum-neo-Iiberal era – the era of wanton destruction of representative and popular organs of political governance. On the one hand, there is this big clamor for accountability, transparency and stakeholder consultations through workshops and policy forums. Accountability has become a whip for the so-called “development partners” and FFUNGOs [foreign funded NGOs] to bit errant governments with. On the other hand, major legislation are pushed through supposedly the most representative organ of the state, the parliament, within hours under certificate of urgency because ”development partners” and their agencies make the passage a condition forfurther aid. The passage of the National Bank of Commerce legislation, which broke up the bank for privatsiation, is a case in point. The enactment of the anti-terrorism law is another. More recently, the enactment of the new anti-corruption law was done under similar circumstances.
I have digressed. Let me return to the topic.
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It may well be asked: Am Inot being over harsh and one-sided in painting the legal professional as a messenger and a mercenary? What about the messiah in the lawyer? After all, law has been presented as anoble profession in quest for justice. Notions of fairness, equality and rights are the bedrock of law. The motto of the Zanzibar Legal Services Centre, whose 151 birthday we are celebrating today, is: Transform Justice into Passion. And here I am, passionately or otherwise, condemning the lawyer!
Well, before you convict me, let me put two points in my defense. First, like any other profession, like society itself, law too has its fighters, its passionate crusaders for justice, and these days, for human rights. Therefore, lawyers are not simply messengers and mercenaries but also messiahs. Secondly, and this is more important, law is a very contradictory process. Law is not simply a set of rules. Embedded in it is an ideology, the ideology of the bourgeoisie of the enlightenment period. Law was perhaps the greatest ideological invention of the bourgeoisie. It is acomplex ideology, which on the surface presents itself as based on equality and fairness. In effect, therefore, it provides a limited space to accommodate some demands from below. Nevertheless, law hides more than it reveals. Just as it required science to unravel the mystery of exploitation under capitalism, which on the surface, appears to be based on equal exchange – a win-win situation as neo-liberal pundits call it these days – so it requires a deeper analysis to show the inherently class nature of law. I cannot go deeper into this. It will take me too far afield.
Let me only point out what is blatantly incongruent in the messianic discourses of law. I will take the human rights discourse, which has attracted all kinds of people to itself -former Marxists, petty bourgeois militants, progressive academics, liberals of all hue, even hangmen and war-mongers. The human rights discourse is presented as a universal discourse. Lawyers say human rights are inherent in all human beings.6 Human rights crusaders were very angry with my book The Concept of Human Rights in Africa’ in which I argued that, (1) human rights was an ideology; (2) that it was an ideology of the dominant classes and powers; (3) that there was nothing universal about it – like all ideologies it was historically and socially bound. And, in any case, I said, even the notion of’human being’ is historical. Under slave society, human beings did not include slaves. They were chattel. Under colonialism, natives were not full human beings. They were “boys” and totos and bihis. Until recently, women were only half human beings and we are still debating whether children are human beings.
That debate pales into insignificance today, when countries are bombed and razed to the ground on the pretext that they are harbouring non-human beings – the so-called terrorists. Because terrorists are not human beings, they have no rights. Just as the dominant classes of society determine who is a human being, so what is right is also determined by the powerful. Today well-meaning human rights activists rally around the banner of anti-capital punishment. In this very space, though, far more human lives are taken away through vicious extra-judicial killings by the very champions of human rights ideology. Those who suffer capital punishment have gone through the judicial process and found guilty. The debate is not about the legal process. It is about the punishment. In extra-judicial killing, there is no process whatsoever. The superpower suspects that two alleged ‘terrorists’ might be hiding among herdsmen in southern Somalia. You bomb it. Your precision bomber is not precise enough to identify the suspects. Two days later, we are told, the number of casualties is not known, but the suspects escaped. Murder is committed. No one takes responsibility nor is held responsible. We all join in the chorus of human rights and humanitarian intervention, and even receive funding from the same source to create awareness on human rights and spread the great doctrine of rule of law. Which law says that you can kill a suspect beyond your borders for an extra-territorial offence created by you? Might is not right, it is just might!
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In the so-called globalised world, where national walls are being torn down economically, socially, culturally and ideologically; where ‘national containers’ are being undermined and destroyed; where whole countries are being turned into slaughter-houses and where the very basis of life – land, air, space, flora and fauna – are transformed into commodities to be sold off in the interest of Capital, we are faced with an altogether different set of questions on the role of the legal professional. What role is the legal professional playing in this process of neo-liberalization of our societies, economies and cultures? To commoditize land and make it easier for the so-called investor to obtain it. A land lawyer is involved; to deregulate the financial sector, a financial lawyer is involved; to break down import and export restrictions so that all kinds of guns and germs may flow in and all kinds of birds and bullions may fly out, an economic lawyer is involved. To draft legislation to make the Central Bank independent and autonomous of parliament and private banks free from any regulation,9 a parliamentary draftsman is involved. A lawyer is a lynchpin, albeit a technical one, in transforming a national economy struggling to care for its people to a neo-liberal economy, which dispenses with people. De Soto, the modern-day capitalist messiah, thinks that the lawyer is next to a terrorist in his capacity to sabotage the neo-liberalization of an economy.10 Maybe he is exaggerating. Nevertheless, the lawyer’s role in oiling and facilitating the neo-liberalization of our economy cannot be belittled.
We may not be able to draw firm conclusions because the process is ongoing. Certain trends are, however, observable. The cream of our legal professionals is joining the neo-liberal elite.” Money is all that matters, whether it comes via the processes of unconscionable privatization exercise, or defending mining companies, which are ripping apart our earth, or drafting labour legislation, which is returning the manamba system in a modern form. Matters of ethics and values and standards and professional conduct have become threadbare. A few junior members of the bar may be sacrificed at the altar of maintaining the image of an ethical profession, but otherwise business goes on as usual. The image of a lawyer as a messenger or a mercenary or a messiah is but a puny and a stale tale. The neo-liberal legal professional is a missionary with zeal. He does not know-it and does not want to know it. Knowledge is anathema to him. He or she, is out toliberalize, deregulate, sell off; privatize, marketize, commoditize. He does not want to know the world around him nor understand the neo-liberal mission, whose foot soldier he has become. It is sufficient that his elite status symbolized by a Mercedez Benz, a bungalow in Msasani, shares in the Unit Trust and a couple of nyumba ndogo, is maintained. The neo-liberal legal elite has its brethren in the neo-liberal political and the neo-liberal business elite. This is narrow elite with little social appeal. It has no social legitimacy; worse, it does not seek legitimacy in its own society. Rather it wants to be praised and decked by the corporate world.
In the sixties and seventies, young legal academics at the Hill tried to demystify law and assault its majesty. They analyzed law and criticized its technicism and narrowness. They set out to create a society-conscious lawyer. At the beginning of this new millennium, as neo-liberalism wears thin, and as the neo-liberal elite loses its last vestiges of nationalism, the young professionals and the village walalahot,who knows, will scale new heights, perhaps put back on the agenda the great project of Pan-African, continental liberation.
That will be ‘A New Beginning’.